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Studying Early Islamic Law

BS”D

 

So I have been busy finding material and sources for the coming assignments. Or at least for the seminar paper. As you might remember I’m going to focus on possible Jewish influences on Islamic legal thought, something which brings me back to the two first centuries AH (the 7th and 8th century), in order to see if we can find any hints of influences. It’s going to be problematic, for sure, but hopefully also very interesting and learning.

Of primary sources I have, so far, decided to focus on writings of madhhab al-Hanafi and maddhab al-Maliki, as well as ash-Shafi’i’s ar-Risâla (noticing that I’m using a phonetic transcription, eh;o). I already have gotten my hands in al-Muwatta, the “law-book” of Imam Maliki, as well as ar-Risâla, but I still need to find writings of the Hanafi law school, so if any of you out there know of any online resources of early Hanafi writings, then please let me know.

Secondary sources have been extensive, fortunately. Of major importance are books and articles by Goldziher, Schacht, and Hallaq. The first is a little outdated, but his observations are of major importance, and have played a huge role in the study of early Islam. Schacht, with his “Origins of Muhammadan Jurisprudence,” is (still) considered one of the giants when it comes to the study of Islamic jurisprudence, while Wael B. Hallaq is the scholar of Islamic law of our days, taking points with many of Schacht’s theories. Especially one of the points of discussion between Schacht and Hallaq is of importance for me, namely which geographical center played the greatest importance, Iraq or Hijaz (Mecca and Medinah in particular). Also on influences do they differ, Schacht pointing to many possible (and like) influences from Roman law, whereas Hallaq attempts to explain these influences as not being influences (for another scholar on this subject, see Muhammad M. al-A’zami). Another scholar, who doesn’t get much mentioning in the Western world, is Ahmad Hasan, who also deals with these subjects on an introductory level in his “The Early Development of Islamic Jurisprudence.”

As far as the question of which of the centers that left the biggest impression, it will be of importance to me in terms of the possibility of relations between Jews and Muslims in the first centuries. Since there, as far as we know, were no great Jewish presence in the Hijaz after the death of Muhammad, it is unlikely that there was much contact between early Islamic scholars from that area and Jewish ditto. That would be much more likely concerning Iraq, where we have the greatest Jewish centers of law of the time. That Hijaz would be of greatest importance, does not rule out any Jewish influence though, especially not considering that Shafi’i attempted to assimilate the two traditions in one, and – apparently – succeeded in it. But also here do we see differences of opinion between Schacht and Wallaq, the former believing that Shafi’i was the concluding scholar of great importance, whereas the latter only believe that that importance came some centuries after Shafi’i’s death.

There are some threads I have to deal with in this subject, though I won’t be able to focus on all of them, only one or two. As stated earlier, it is an extensive subject, which also can be seen from the books written by mentioned scholars. Especially Hallaq has attempted to deal with this in depth and via more books, so I don’t believe myself being able to deal with the subject on a satisfactory level, unless I be very specific in my focus.

Comparative study on the law schools and overall structure of Islam and Judaism – Defining the Schisms

BS”D

 

Considering finding the comparison of the evolution of the Jewish maḍhab, I think there are some things that need to be in place, before we can begin the comparison. First off, one of the reasons the various maḍâhib appeared was the internal split as well as the geographical distance between the centers. People became more focused on their local center than on the overall center. When do we see the same in Judaism? Another thing which needs to be in place, is the acknowledgment of the same basic sources. When talking about Islam the split in the legal sources is the Sunnah and the Imams, where the Shi’as don’t acknowledge the Sunni compilations of Hadith, so the Sunnis don’t acknowledge the Shi’a ditto as well as the status of the Imams. Within the Sunni maḍâhib the basic sources where agreed upon, as they were, I believe, in the case of the Shi’a maḍâhib.

So we have two levels of comparison here. One is in the schism of disagreement on basic sources, that is, the sources considered holy and thus basic for further understanding of Allah’s will, the other the schisms within the major movements, where it is a question more about different principles in the interpretation of these sources, than the sources themselves.

When I think of examples on the first schism in Judaism, I find many and from various periods of time. During the Biblical times the obvious example is that of the Samarians and the Judeans. During the time of the Second Temple there are the schisms between the Pharisees and the Sadducees, the Essenes and the other Jewish groups (in regards to the status of the Temple as well as the priesthood of the Essenes), and later on between the Rabbinic Jews and the Karaites. Today we might even talk about the schism between the Orthodox on the one hand and the Reform on the other (with the Conservative movement somewhere in between). What is worthwhile to notice here is that we are talking about schisms, which emphasis the struggle on who are the right ones to define what “true Judaism” is, that is, where do we put the limits. That is also the case in the Islamic schism between the Sunnis and the Shi’as. Of course, which I dare say is obvious, it doesn’t mean that the two parts in each schism, whether Jewish or Muslim, denies the other side’s right to leave an imprint on the religion, as well as the case can be that sometimes the one part denies the other side’s right, while the other side acknowledge the right of the first side.

The schisms which I believe cannot be placed within this category of schisms, let’s call it the Schism of Who is Right, are those of the Ashkenazim and Sfaradim, and that of the Talmuds Yerushalmi and Bavli, simply because we have two sides, in both cases, agreeing on the basic sources.

This leaves me though with maybe even more work. First off, which groups should I focus on? It is clear that I need to decide on whether I focus on the Rabbinical Jews, the Sadducees, the Reform, the Sunni, or the Shi’as, for the sake of focus. Second off, I also need to establish whether we can find examples on the maḍâhib in all cases. Maybe I find it among the, let’s say, Karaites, but it doesn’t mean that it exists in the case of the Sadducees. I need to define my approach, my focus, and be able to explain why I chose that focus.

 

Some recommended reading:

 

“Studies in Usul al-Fiqh,” Iyad Hilal, can be found at www.islamic-truth.fsnet.co.uk

“Principles of Islamic Jurisprudence,” M. H. Kamali, can easily be found by search on Google.

“Hadith : Muhammad’s Legacy in the Medieval and Modern World,” Jonathan A. C. Brown. Oneworld Publication, 2009.

“The Most Learned of the Shi’a: The Institution of the Marja’ Taqlid,” edited by Linda S. Walbridge. Oxford University Press, 2001.

“Introduction to Islamic Theology and Law,” Ignaz Goldziher (translated by Andras and Ruth Hamori). Princeton University Press, 1981.

“Halakha in the Making: The Development of Jewish Law from Qumran to the Rabbis,” Aharon Shemesh. University of California Press, 2009.

“The Talmud: A Selection,” Edited by Norman Solomon. Penguin Books Ltd, 2009.

“Who Owns Judaism? Public Religion and Private Faith in America and Israel,” edited by Eli Lederhendler. Oxford University Press, 2001.

“For the Love of God and People: A Philosophy on Jewish Law,” Elliot N. Dorff. The Jewish Publication Society, 2007.

“An Introduction to the History and Sources of Jewish Law,” edited by N. S. Hecht, B. S. Jackson, S. M. Passamaneck, D. Piatelli, and A. M. Rabello. Oxford University Press, 1996.

“The Sages,” R. Ephraim Urbach. The Magnes Press, 1987.

“The Halakhah: Its Sources and Development,” R. Ephraim Urbach. Modan Ltd, 1996.

Comparative study on the law schools and overall structure of Islam and Judaism

BS”D

 

In Islam, when talking about Fiqh and Usul al-Fiqh, which is normally translated as “Jurisprudence,” though that doesn’t convene the full or exact meaning of the expressions, we deal with various “schools” of law. In Arabic these “schools” are called “maḍhab” (مذهب). These schools, which are named Hanafi, Hanbali, Shafi’i, Maliki (which are forming the four Sunni-schools), Jafari, and Zayidiyyah (forming the two Shi’a-schools), convey various approaches to how to deduce law from the primary sources (for Sunni-Islam they are the Quran and the Sunnah, compiled in the six works of Hadith, for Shi’a-Islam they are the Quran, the four works on Hadith, as well as the sayings of the Imams), which are not clear.

So today we have two major streams of Islam, namely Sunni- and Shi’a-Islam, which each have a number of “schools,” structured around a number of authorities. I am aware, of course, that there are more streams and groups than just the ones mentioned here, but we have to keep a certain focus, in order to get – at least – a basic understanding of things at hand.

Why do I state all this? Well, when I was sitting and studying the principles of the four Sunna-schools (please forgive me all you Shi’as, I haven’t forgotten you, just need to keep one thing at a time), suddenly thought about the Jewish ditto, or rather, whether there is a Jewish ditto, whether we can make some comparison between the Islamic situation and the Jewish situation. For example, in Judaism we talk about two major traditional schisms, namely the Ashkenazi and the Sfaradi, normally being translated to the “Western” and the “Oriental” traditions, though this is highly misleading. These two traditions are again parted in smaller traditions with their differences. These two traditions are being expressed in laws, prayers, and attitudes. For example, during Pessah, Passover, Ashkenazim do not eat “kidniyot,” rice and the like, while Sfaradim do. There are also differences in prayers, not so much in which prayers we pray, though also, but more dialects and certain wordings being different between the two traditions. The most well-known difference, I think, is the time we wait between eating meat and milk, which is six hours for the Sfaradim and three or one hour for Ashkenazim (again depending on which stream you belong to).

But the Sfaradi-Ashkenazi schism isn’t the one I’m focused on the most, since it doesn’t refer much to what is at stake when we talk about the Islamic schools of law, at least, that is, I don’t feel that it is so. I’d rather focus on the schism between the schools of Eretz Yisrael, the Palestinian schools, and that of Babylon, which laid the foundation for the two Talmuds, the Bavli and the Yerushalmi. Of course, these were finished in around 650 CE and 425 CE respectively, but the two areas kept on having a mutual struggle and disagreement of authority, which – among other things – can be witnessed by the fight for authority on the calendar between Sa’adia Gaon and R. Meir, Z”L.

In order to get to a better understanding on the similarities, if any, between the two religions, I need to establish a basis for comparison. I have chosen to focus on the understanding of the term maḍhab, in order to see if the two religions share any basis in the foundation of their legal traditions. The problem here is that we don’t have a term in Judaism which answers to the Islamic term maḍhab, at least not what I know of, so in order to find out what can be compared, we need to know what to compare with, the mentioning of the term maḍhab not being enough, at least not in the understanding of “school,” for what does a “school” constitute.

 

More on that the following days.

What’s Going On?

BS”D

 

As I hope you have noticed it has been some time since my last post. I am sorry for that, but the last couple of weeks have simply been too busy and packed, among other things with the conclusion of my assignments and the beginning of the new semester.

When I have received my grades I will most likely share one or more of my assignments, or at least tell about them, so for those interested, there is something to look forwards to!

My new semester offers both the continuation of some old courses, as well as the introduction of some new ones. Early Christianity and Early Islamic Texts are continuing, though with the unfortunate change in the former, that Dr. Paula Fredriksen is not going to teach us anyway, so we are continuing under Dr. David Satran (who definitely is a good teacher, no doubt). The focus in the new semester will be on Augustine, so I’m looking forward to spend some time on one of the biggest Christian thinkers. If any of you out there can recommend any material on him, then please let me know.

Hebrew is also being continued, though on a new level, which also introduce me to a course on Jewish Texts. On Hebrew. High level Hebrew. Just hope that it’s not going to be too high, though I do speak Hebrew I’m still not used to it in an Academic context, but I’ll guess that will change now.

The new courses are Medieval Jewish Exegesis, with focus on Rashi, Rashbam, and Ibn ‘Ezra, Z”L, going to be interesting, and after the first class I can see that it’s certainly is going to teach me a lot of new things. Stay tuned for that one. I also am going to begin a course in History and Archaeology of Muslim Jerusalem, something I really am looking forwards to, but we are waiting for the first class, because of strikes (big dislike). And finally a course called “The Battle over the Bible!” on Jewish, Christian, and Muslim polemics and interpretation of the Bible. Definitely also going to be interesting, already having discussed whether the Rabbis believed that they had the exact original text being revealed in their hands (they didn’t!), so also a course I’m going to relate to a lot.

 

What else will I be focusing on this semester? Since I’m going to write a seminar paper on Fiqh, Islamic Jurisprudence, there probably will be some focus on that, as well as gender studies in Judaism and Islam, since my focus will be on that in context of religious law the next coming semesters (I think). I’m working on Langmuir’s and Geertz’ theories of Religion, so I’ll probably also deal a little with that.

Besides that it’ll probably be whatever comes to my mind, as normal.

 

That’s it I think. Take care out there!

Defining and Understanding Terms in Islamic Jurisprudence

In my study of Islamic Law, I decided to share my – hopefully – growing knowledge and understanding with you, as well as inviting you to discuss it and correct me, where and whenever you believe that I am wrong about a subject.

As it is with knowledge, this will be growing, having me adding to this post the more I study. As it is with my post about reflection on the Mishnah, I will be writing on this post whenever I spend time on the subject and the time allows me. Therefore you will experience that new parts are added during time, and I will –  of course – note when I do that.

So, please enjoy and participate in my study of Islamic Legal Terms.

When it comes to Islamic Law, then there are two terms that can create some form of confusion, namely Shari’âh and Fiqh. Both relate to Islamic Law, but where Shari’âh is more general, Fiqh is more specific. Professor Hasan Dani explains the term Fiqh, as having the meaning of understanding or knowledge of something, and in such form it was used by the Arabs about a camel expert, who distinguished the lusting she-camels from the pregnant ones. In that context the term Fiqh, should be seen as the knowledge or understanding of any given thing, in which the term is used in context to.

Originally the term was used in a more broad understanding in relation to the Qur’ân, not only in regards to the legal understanding or knowledge, but also theological, political and economical ditto. It seems like that it wasn’t used in the strict juristic understanding until the second Islamic century,[1] which Hasan Dani argues can be seen from the way the term is used, for example from the book “al-Fiqh al-Akbar,” by Abu Hanifah,[2] which deals with the basic tenets of Islam, such as faith, unity of God, etc. Hence, he argues, it can be argued that Kalâm[3] was also covered by Fiqh in the early years of Islamic history.

Fiqh and ‘Ilm[4] were used intertwined in the first decades, namely as the “understanding of Islam in general,” until and after the death of Muhammad,[5] but then facing new problems and having to use their personal judgment, the term Fiqh began to be used in relation to the exercise of the intellect, that is, the intellectual pursuit of knowledge. At the same time people began to collect the traditions being told through a chain of narrators, which was understood in the context of ‘Ilm. Hence the exercise of intellect and personal opinion was termed Fiqh, and the collection of traditions and sayings of Muhammad and his followers, and the exercise related to this, was termed ‘Ilm. These two terms seems to have been separated at the end of the first century AH, when specialist (in the traditions and saying) and jurists came into existence.[6]

As the legal activity was growing, Fiqh became more and more used about the legal knowledge based on the intellect study and understanding of the Islamic sources, and hence the meaning of the term became related to the narrow focus on legal acts, where “an action is either legal or illegal, yajûzu wa’mâ lâ yajûzu, permissible or not.”[7] That is, Fiqh became solely focused in dealing with the understanding of Halal or Harâm,[8] the clear legal decisions, not focused on ethics, behavior or theological principles. Hence the evolution let to Fiqh being “the term used for the law as a science.”[9]

 


[1] 800 – 900 CE.

[2] D. 772 CE.

[3] The philosophical search for theological truth through the method of dialectics.

[4] Normally being used as “knowledge of Islam,” but in a legal context it deals more with the Tradition of Qur’ân and Hadith.

[5] 632 CE.

[6] It is interesting in this respect to notice that the year 94 AH (712 CE) became known as “Sanat al-Fuqahâ’” (the year of the legal experts) a Faqih (Fuqahâ’ in singular) being an expert in jurisprudence, or Fiqh. This was so because of the death of some of the most esteemed legal experts of Medina, such as Sa’îd ibn al-Musayyib and Abû Bakr ibn ‘Abd al-Rahman.

[7] “Outlines of Muhammadan Law,” by Asaf A.A. Fayzee.

[8] Allowed (Halal) or Not Allowed (Harâm).

[9] Ibid.